The Judge Has Spoken - Whether You Like it Or Not

Debra J. Saunders

8/5/2010 12:01:00 AM - Debra J. Saunders

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," federal Judge Vaughn Walker wrote. So one judge overturned a measure approved by 52 percent of California voters in 2008 and upheld by the California Supreme Court in a 6-1 ruling.

Some Californians will see this decision as the work of an elitist gay judge imposing his pre-ordained political views on voters. They can point to the fact that Walker issued controversial pretrial rulings on procedural issues that favored the plaintiffs contesting Proposition 8 -- only to be overturned on appeal.

For Walker's part, he issued a temporary stay on his decision. So one judge will not have the last word on Proposition 8. Gay activists are ecstatic, but I don't think you'll see Mayor Gavin Newsom on City Hall's steps crowing, "It's going to happen -- whether you like it or not," which is what Newsom said when the California Supreme Court ruled in favor of same-sex marriage in 2008. (To recap, the state's top court overturned a gay marriage ban in May 2008, but upheld Proposition 8 after voters put it in the state constitution in November.)

"Whether you like it or not." While Proposition 8 opponents style themselves as champions of tolerance, they've chosen judicial fiat over the slower, surer route of persuasion.

Californians want to be sure that tolerance will be a two-way street. Will the courts force people to approve of same-sex marriage in the same fashion that San Francisco Superior Court judges voted to bar judges from taking part in the Boy Scouts because the Boy Scouts barred gays? Will advocates use the schools to promote same-sex marriages with young kids? These aren't unreasonable questions.

Walker summed up support for Proposition 8 as emanating from "a fear or unarticulated dislike of same-sex couples." Wrong. Voters have reason to be afraid lest legalizing same-sex marriage result in unintended consequences -- such as the legalization of polygamy, as recommended by a Canadian panel commissioned to debunk the same-sex-marriage-legitimizes-polygamy argument.

It's pretty clear that given time and the right answers to the above questions, California voters would choose to legalize same-sex marriage. In 2000, 61 percent of voters supported a ballot measure limiting marriage to heterosexual couples. In 2008, support had dropped to 52 percent.

Barring a backlash, you would expect state voters to approve same-sex marriage within the decade -- which would avoid lasting rancor over a court-imposed decision. Instead, Walker went with: Whether you like it or not.